Fair Disciplinary Procedures

As of June 2017, hundreds of schools are under federal investigation for mishandling reports of gender-based misconduct on campus, discouraging survivors from reporting, or failing to appropriately sanction perpetrators. States should establish a Student Survivor’s Bill of Rights and common-sense Fair Process requirements to ensure schools hold perpetrators accountable, support survivors, and provide accused students with a fair hearing. provide accused students with a fair hearing.

This resource is part of our State Policy Playbook. The Playbook outlines key reforms that students, advocates, and state policymakers can pursue to support survivors on campus, keep students safe, and end gender-based violence in school.

New Section

Although federal law requires all schools to adopt, implement, and publicize a gender-based misconduct policy, many schools have skirted federal requirements by publicizing unclear policies or failing to apply their own policies consistently. Some schools have special (i.e., more lenient) procedures for investigating athletes accused of sexual assault; others fail to take gender-based misconduct seriously when the perpetrator and victim are of the same gender.

All students should be able to turn to their schools for resources, accommodations, and justice after violence. To help students do so, schools should adopt and implement a clear Gender-Based Misconduct policy that applies equally to all community members.

Best Practices

Schools should adopt and implement a comprehensive, clear Gender-Based Misconduct Policy (Policy), which should be distributed to all community members and include plain-language information about:

The resources and accommodations the institution can provide or facilitate for survivors;

The various safe reporting and disciplinary options that survivors can pursue separately or simultaneously, at their discretion;

The roles and responsibilities of the institution's Title IX Coordinator; and

Which school officials and employees are considered mandatory reporters and an explanation of their responsibilities.

Every institution’s Policy should include an explicit statement that the institution’s policies and procedures apply equally to all community members, regardless of race, class, gender, sexual orientation, gender identity, disability, immigration status, national origin, religion, or any other protected status. States should also require that schools respond to all reports of gender-based misconduct in a manner consistent with the publicly distributed school policy.

The Policy should also note that institutional services and protections afforded to reporting individuals are available to all community members and applicable to conduct that has a reasonable connection, or “nexus,” to the educational institution. In other words, the policy should apply regardless of whether the violation occurs on campus, off campus, or while studying abroad.

Each institution should post its Policy on its website in a manner easily accessible to the public, and should take reasonable steps to ensure the Policy is widely distributed to and understood by students. Schools should be required to make policies accessible to students with disabilities through measures such as, but not limited to, providing braille copies and audio recordings of policies and procedures.

Many schools pressure survivors not to file a report of gender-based violence, sometimes pushing survivors to leave school instead of investigating perpetrators. Others blame survivors for their own assaults, drag investigations out for a semester or longer without a resolution, or even punish them instead of perpetrators. When they fail individual survivors, schools deter reporting, making campuses less safe

Every school should adopt, implement, and publicize a “Student Survivor’s Bill of Rights” as part of its misconduct policy to ensure survivors who come forward are treated fairly by their schools.

Best Practices

States should require all schools to adopt, implement, and publicize a “Student Survivor’s Bill of Rights,” which includes, at a minimum, the right to:

Receive from the institution reasonable accommodations—including counseling, residential and academic accommodations, no contact orders, and other services reasonably necessary to eliminate a hostile environment, prevent retaliation, and ensure a survivor is not prevented from accessing their education as a result of gender-based violence. Schools should provide these accommodations at no cost to reporting individuals;

Choose whether or not to report an incident to school officials, law enforcement, or both; to participate in a campus conduct or criminal justice process free from undue pressure from the institution; and to have a campus conduct process run in the absence of, or concurrently with, a criminal investigation and proceeding;

Have reports of gender-based violence investigated and adjudicated in a campus conduct disciplinary proceeding in accordance with college or university policy and in a timely fashion;

Be free from the suggestion by any school employee that a survivor is at fault for an incident of gender-based violence, or that a survivor should have acted in a different manner to avoid the incident;

Describe the incident to as few individuals as practicable and not be required to unnecessarily repeat a description of the incident;

Choose to submit evidence during the fact-finding stage demonstrating the impact of the violation, including but not limited to: medical records, counseling records, and changes to a student’s grades, enrollment status, and other academic performance;

Cease to participate in a campus disciplinary proceeding at any time, without penalty;

Withdraw a complaint without penalty. If a complainant requests to withdraw their complaint, the institution should cease its investigation, except where the institution is required to continue by law or where circumstances credibly suggest an increased risk of the respondent committing additional acts of sexual, dating, or other violence or harassment;

Be protected from retaliation by the institution, and to have the institution take all reasonable steps to prevent retaliation by any student, the accused and/or the respondent, and/or their friends, family, and acquaintances, and/or other community members within the jurisdiction of the institution.

Nothing in this list should be construed to prevent any institution from providing survivors additional rights that are necessary to support survivors, to encourage reporting, and to create a safe school environment.

Title IX requires that schools use a preponderance of the evidence standard of proof in sexual harassment cases (i.e., it is “more likely than not” that the respondent committed sexual harassment or violence). While the Department of Education explicitly clarified that preponderance was the appropriate standard for Title IX procedures in 2011, courts have long affirmed that it is the appropriate standard by which to adjudicate cases under civil rights laws, including Title IX, Title VI, and Title VII of the Civil Rights Act of 1964. Beyond civil rights litigation, preponderance of the evidence is the standard employed in most civil actions and the evidentiary standard that equitably balances the educational interests of both a complainant and a respondent. Additionally, schools regularly use this standard in disciplining students for other criminal or harassing code of conduct violations, including physical assault, burglary, hazing, and racial harassment.

As such, state legislators should specify that schools must adopt a “preponderance of the evidence” standard when adjudicating complaints of gender-based harassment and sexual assault.

Survivors shining a light on gender-based violence in schools have exposed systematically biased campus disciplinary procedures that sweep campus sexual assault under the rug. As public pressure forces schools to reform, some have raised concerns that student disciplinary procedures are unfair towards accused students. By requiring schools to adopt basic procedural protections for all parties involved in school disciplinary hearings around gender-based violence, states can help ensure that school procedures are fair to both survivors andaccused students.

Best Practices

Schools should take all reports of gender-based violence seriously, and investigate all reports in accordance with college or university policy and procedures, as well as federal and state law. Each college and university should ensure that students have, and are informed of, the right to file a campus conduct complaint related to gender-based harassment or violence. Every institution should be required to inform reporting individuals of their rights under this statute and all relevant federal, state, and local laws.

In all student conduct cases in which a respondent is accused of sexual harassment, sexual assault, domestic/dating violence, stalking, or gender-based violence, schools should be required to provide, at a minimum, the following rights to both the complaining and responding party:

To be treated with dignity, respect, and fairness by all school and law enforcement officials;

To a timely investigation and disciplinary process that is fair, impartial, respectful, and provides a meaningful opportunity to be heard;

To timely, clear, and simultaneous (among the parties) written and electronic notice of both parties’ rights and responsibilities under school policy and applicable local, state, and federal law; procedural developments; the final determination; and the sanction(s) imposed, if any. The school shall also provide the respondent timely and clear notice of the date, time, location, and factual allegation(s) concerning the violation;

To receive written or electronic notice of any meeting or hearing the parties are required or are eligible to attend, provided in advance with sufficient time to prepare;

To have access to counsel, who may assist and advise any party throughout the disciplinary process, including all meetings and hearings related to such process, in compliance with applicable federal and state laws. States can ensure individuals have access to counsel by establishing a state grant program to fund civil legal services for victims of gender-based violence. Alternatively, states may require schools to establish a memorandum of understanding with legal services providers to secure, at minimum, five hours of legal advice with a qualified advisor for those who are unable to independently access legal counsel for financial reasons. Schools should be prohibited from retaliating against legal services providers for zealous advocacy efforts undertaken on behalf of their client;

To have a personal supporter of their choice (such as a counselor, parent, or friend) who a student may choose to have present either in addition to or in lieu of an attorney in all meetings and hearings related to such process, in compliance with applicable federal and state laws;

To have a complaint investigated in an impartial, timely, thorough, and trauma-informed manner by investigators who receive annual training in conducting investigations of gender-based violence, the effects of trauma, and other issues related to sexual harassment, sexual assault, domestic violence, dating violence, and stalking;

To review available evidence in the case file, with adequate time to consider and respond and in the presence of an advisor of their choice;

To reasonable opportunity, provided equally among the parties, to submit evidence, recommend witnesses, provide testimony at a hearing, and recommend questions for the other party to investigators, hearing panelists, and other decision-makers;

To choose to exclude one’s own prior sexual history with persons other than the opposing party from admittance in the institution’s disciplinary stage that determines responsibility, with the exception of specific instances of a complainant’s sexual behavior if offered to prove that someone other than the respondent was the source of semen, injury, or other physical evidence. Past sexual violence findings may be admissible in the disciplinary stage that determines sanction;

To choose to exclude one’s own irrelevant mental health diagnoses and/or treatment from admittance in the institution’s disciplinary stage that determines responsibility and sanctioning;

To not be compelled by school authorities to provide self-incriminating testimony if criminal charges are possible or pending. School disciplinary officials may, in appropriate circumstances, draw adverse inference if a student declines to provide relevant information;

To provide testimony without encountering the opposing party in person and to view testimony provided by the other party. The school may use a range of options to provide for testimony, including videoconferencing or CCTV;

To ask questions of the decisionmaker and, via the decisionmaker, indirectly request responses from other parties and any other witnesses;

To have findings of responsibility or non-responsibility for an incident of gender-based violence determined by a panel of three to five (3-5) impartial and regularly and thoroughly trained decision makers using a preponderance of the evidence standard;

To fair and proportionate sanctions;

To appeal to a panel of three to five (3-5) impartial and regularly and thoroughly trained decision-makers where previously unavailable evidence or procedural error could significantly impact a case’s outcome, or where a sanction is substantially disproportionate to the findings, or in other appropriate circumstances. The institution must review requests for an appeal in the same manner regardless of which party files the appeal, and the appeals process must be equitable for both parties;

To a written explanation of any outcomes, including but not limited to a finding of (non-)responsibility, sanction, or granting of an appeal;

To disclose or discuss the outcome of a conduct hearing;

To attend religious services and holidays without unreasonable interference from a student conduct process.

When the responding party is an employee of the school, the school must allow survivors to report the incident to the institution’s human resources authority, at a survivor’s discretion. When the respondent is an employee of an affiliated entity of the institution, school officials should, at a survivor’s request, assist in reporting to the appropriate human resources authority of the affiliated entity. If the response of the affiliated entity is insufficient, survivors must be able to petition the school for a persona non grata letter.

While this model policy is a resource for policymakers and advocates working to combat gender-based violence on campus, Know Your IX believes that educational institutions should respond to and investigate reports of gender-based violence in a manner consistent with their response to reports of other serious student code-of-conduct violations. The principles outlined in this section are broadly applicable to reports of other forms of violence and harassment on campus.

Resources

Illinois’ ‘Preventing Sexual Violence in Higher Education’ law affords a number of important fair process protections to complainants and respondents. Among these protections are requirements that schools provide survivors with information about how to access resources, no contact orders, and orders of protection; train campus adjudicators; ensure that complainants and respondents have the ability to present evidence and witnesses; provide simultaneous written notification of the results of the complaint resolution procedure to complainants and respondents; and afford complainants and respondents the right to a timely appeal.

Student survivors should not have to share their personal experiences with the media in order to induce campuses to fix their response to sexual violence. Schools can take simple proactive steps to evaluate and improve their resources, policies, and procedures for responding to gender-based misconduct.

Best Practices

Every two years, schools should be required to audit their gender-based misconduct policies. Audits should include consideration of (1) campus climate survey data; (2) current best practices; and (3) testimonials from students who participated in a disciplinary process and students who sought campus resources but chose not to file a conduct report. Audits should be conducted by an oversight body independent from the institution’s Title IX Coordinator(s).

Schools should provide reporting students, responding parties, and witnesses with an optional evaluation form to complete following major steps in the case and after its completion. This form should gather feedback on the students’ experiences with the reporting and disciplinary processes, and with accessing resources and reasonable accommodations. Anonymized evaluations should be shared with the oversight body responsible for auditing an institution's gender-based misconduct policy, but in no circumstances should they be shared widely.

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